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Employers can pay women taking maternity leave more than men taking shared parental leave – for at least 14 weeks

The Employment Appeal Tribunal (EAT) has handed down an important decision in the case of Capita Customer Management Ltd v Ali which clarifies that employers who enhance maternity pay, but not shared parental pay, do not directly discriminate against men.

This is because the primary purpose of maternity leave and pay is to protect the health and wellbeing of the mother, whereas shared parental leave is designed to enable both parents to care for their child. The two types of leave are therefore not comparable – at least for the first 14 weeks.

Legal background

The right to take shared parental leave (ShPL) and shared parental pay (ShPP) was introduced in 2015. It gives eligible parents the right to share up to 50 weeks of leave, and 37 weeks of pay, to care for their child. ShPP is paid at a flat rate (currently £145.18 per week) – there is no enhancement for the first six weeks.

Facts

In Ali v Capita, Mr Ali asked to take shared parental leave to care for his new born baby following his wife’s early return to work. He was informed that he would only receive the statutory rate of pay, and he argued that this amounted to direct sex discrimination because women on maternity leave in his area of the business received 14 weeks’ full pay. He argued that men taking ShPL should be entitled to receive 12 weeks full pay as he accepted that the first two weeks of compulsory maternity leave could be treated differently.

Capita refused to enhance ShPP for Mr Ali and he issued proceedings, alleging both direct and indirect sex discrimination.

The Employment Tribunal decided that Capita’s policy did amount to direct sex discrimination. It drew a distinction between the first two weeks compulsory maternity leave and the remaining weeks.

It said that the principle purpose of compulsory maternity leave was to give women time to recover from childbirth. However, after that time, maternity leave enabled women to care for their child. ShPL enabled parents to make choices about the care of their child, and it was not appropriate to assume that a mother is always “best placed to undertake that role and should get full pay because of that assumed exclusivity.”

It said that Mr Ali should be entitled to the same benefits for performing the same role as that performed by a woman on maternity leave.

Capita appealed.

Decision of the EAT

The EAT found that Capita’s policy did not directly discriminate against men because:

The purpose of maternity leave and pay is to protect the health of the mother. By contrast, ShPL is designed to help parents share the care of their child. It is therefore inappropriate to compare the two types of leave and the differences in pay cannot amount to direct discrimination.

The correct comparator in this case is a woman on parental leave – not a man. Parents of either sex were given shared parental leave on the same terms and so there was no discrimination.

Implications

The Pregnancy Workers Directive requires member states to introduce legislation to enable women to take maternity leave with adequate pay for a minimum of 14 weeks.

It is clear that the purpose of maternity leave is – and the pay associated with it are – for the health of the mother – not to look after a child (although she will no doubt do this as well). This is evidenced by the fact that maternity leave and pay is available before a mother gives birth, as well as to surrogate birth mothers and mothers who have a still birth in late stages of pregnancy.

Capita’s policy provides full maternity pay for 14 weeks for that business area, and this therefore directly corresponds with the minimum requirements set down by the Directive. However, this decision leaves open the prospect that a longer period might also be justifiable.

Working Families, the UK’s leading work-life balance organisation, intervened in the case and argued that it might be possible to draw a valid comparison between a father on shared parental leave and a mother on maternity leave after 26 weeks. The EAT noted this view but did not address it further. We believe that this argument would only be relevant to an indirect sex discrimination claim.

The issue of indirect discrimination on the same issue was explored in Hextall v Leicestershire Police. Unfortunately, that judgment was not handed down at the same time as Ali, although it was heard by the same Judge to give a consistent view on this complex legal issue. We will therefore have to wait for an analysis of indirect discrimination. While it may seem logical that the result in Hextall would follow the same underlying reasoning as Ali, it was argued on different grounds.

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